POL00268503 - Extracts from the judgement that demonstrates bias
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EXTRACTS FROM THE JUDGMENT THAT DEMONSTRATE BIAS
Paragraph Statement
10 When shortfalls occurred, the Post Office demanded (and I use
that word advisedly) that each individual sub-postmaster pay the
sums in question
13 & 14 Statements as to the approach Post Office took to the litigation
when there is evidence (tbc) that both Post Office and the
Claimants challenged the timetable. There are no,adverse
comments about the Claimants’ approach to the litigation.
28 The Post Office may have made these submissions because, on
an objective analysis, it fears objective scrutiny of,its behaviour,
or it may have made them for other reasons.
30 However, a party (here the Post Office)threatening dire
consequences to national business should their case not be
preferred is not helpful, and this seemed to me to be an attempt
to put the court in terrorem
36 There seems to be a culture of'secrecy and excessive
confidentiality generally within the Post Office, but particularly
focused on Horizon.
42 Other redactions are not quite so easily explained, and in my
judgment demonstrate a culture of secrecy in the Post Office
92 lackadaisical approach to formation of contractual relations to
which T havepreferred
129 Thirdly, in what I consider to be an outdated attitude in the 21%
century, the Post Office attempts to fix a married lady with
imputed knowledge of detailed terms and conditions simply
because of something attributed to her husband.
138 In my judgment these submissions by the Post Office are bold,
pay no attention to the actual evidence, and seem to have their
origin in a parallel world.
139 Iam surprised that, if Mrs Stubbs was entitled to any Death in
Service benefits, these were not explained to her,
166 The temporary SPM who replaced her in the immediate term told
her that the Post Office had instructed him to destroy all
paperwork that was in the Branch that related to her
appointment. The reason for that instruction to destroy
documents is wholly unclear, and in my judgment, I cannot
conceive of any justifiable reason to destroy such documents.
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172 None of the Post Office personnel involved at the time with Mrs
Stubbs, who attempted to obtain some input or explanation from
Fujitsu were called as witnesses, so it is not possible to know
what their full involvement was, the extent of their knowledge of
the background matters, how many other SPMs they knew of
may have had similar issues, nor the degree to which they
considered Mrs Stubbs’ good record of over two decades
(including her involvement when her husband was alive) to be
relevant. I make it quite clear that I do not speculate on any of
that.
222 The only reason for doing so, in my judgment, must have been
to lead the recipients to believe that they had absolutely no
option but to pay the sums demanded. It is oppressive behaviour
231 In yet another example of the Post Office’s shoddy document
management at the time,
The other two pages, 3 of 4 and 4 of 4, are missing. Again, there
is no cogent explanation for this. I do not Understand how half of
a letter can go missing, particularly when it is dated from only
2006
279 the Post Office’s procedures,in terms of the SPMC went, in my
judgment, from the sublime to the ridiculous
295 If that replacement, took place after April 2016, and if it is
because of the replacement that this recording is not available,
then that means the Post Office has failed properly to deal with
an important record directly relevant to the litigation during the
proceedings'themselves.
338 The suggestion that she had not is, in my judgment, an excuse
used by,the person who sent the e mail above.
371 Essentially those provisions can only have been drafted to give
the Post Office the maximum control over information, and are,
in my judgment, contrary to transparency.
374 Discussion of ‘core principles’ - a term used by PGQC in cross-
examination (see extract from trascript in para 372.
He also referred to what he called “the core principles”. Mrs Van
Den Bogerd, another highly intelligent and senior witness, said
she was not aware of these. It is not possible to reconcile the
evidence of Mr Beal and Mrs Van Den Bogerd on this point. If the
Post Office does have such core principles written down
somewhere, not all its senior personnel are aware of what they
are, which is rather contrary to the concept of, and their
description as, “core principles”
375 Mr Beal’s way of giving evidence was very much the house Post
Office style, certainly for the more senior of its management
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personnel who gave evidence. This was to glide away from
pertinent questions, or questions to which the witness realised a
frank answer would not be helpful to the Post Office’s cause.....He
sought to give me evidence highly favourable to the Post Office,
which I consider was slanted more towards public relations
consumption rather than factual accuracy. It did not match the
contents of the documents to which I have referred, namely the
GFA, and the change in wording of the terms dealing with liability
for loss by a SPM under the NTC
376 Mr Beal’s attempt to persuade me to the contrary on both points
is regrettable; it is possible that he has persuaded himself. His
evidence came across to me as a public relations exercise.
403 On either approach, I do not know why risks to the Post Office’s
reputation should be a relevant factor ..... (which is what I find
Mr Breeden’s evidence to consist of) «...... the Post Office’s
reputation might be significantly affected if it were found to have
suspended a SPM on grounds that»were wholly unjustified.
Unjustified suspension ought to’be a factor in favour of an appeal
succeeding, on any sensible’ view. The Appeal Managers are
senior Post Office managers who.are»said to have had training to
hear appeals. The reputation of the Post Office would best be
served by appeals that were justified succeeding, and those that
were not failing. It should, not have formed any part of the
criteria.
408 As with the other more senior members of the Post Office group
of witnesses, Mr Breeden is articulate, intelligent and also acutely
aware of how much the reputation of the Post Office hinges on
these proceedings. His evidence was presented in terms
obviously, designed to put the best possible gloss for the Post
Office on matters, and some of his statements simply did not
stand scrutiny.
one..reason why the factual part of the Common Issues trial
became so protracted is because of this approach by the Post
Office generally. Agreement to even obvious points would be
reached, eventually, but getting there took much longer, and a
great deal more effort, than it ever ought to have done. His
evidence was again given through a PR-prism.
414 Indeed, some passages of the Response were, word for word,
exactly the same as her witness statement. She did however
attempt to distance herself from it where she could, by denying
she was “the author” (it was never suggested she was) and
denying that she had signed it (again, it was never suggested
she had).
415 However, it is a surprise to me that she still held the view that
each case was demonstrably different and influenced by its own
particular facts, or that no themes connected the different cases.
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416 Notwithstanding the making of the GLO, Mrs Van Den Bogerd
appears entrenched in her refusal to what I consider to be the
obvious common themes connecting all these claims, and I
simply cannot understand this
However, having such a senior witness with such an entrenched
view as this means that a degree of obstinacy affected the whole
of her evidence. She seemed to be entirely incapable of
accepting any other view of the issues other than her own, which
I consider amounts to an absolute refusal to accept that the
cases of the many hundreds of Claimants were linked
Given she has, for so many years, been involved in defending the
Post Office’s position, she has become, in my judgment,
extraordinarily partisan. Whether this refusal to accept any link
between the different cases is part of a concerted “divide and
rule” approach by the Post Office is not clear.
417 There are two specific matters in which I find that she did not
give me frank evidence, and sought to:obfuscate matters, and
mislead me.
418 When this was put to her (a.little later, and after she had been
given the opportunity of considering her Horizon Issues witness
statement) she explained that her answer that she was coming
to the matter cold was'“a mistake”. I reject that explanation. Her
Horizon witness statement is very detailed, and was signed just a
few days earlier. than her cross-examination. Mrs Van Den
Bogerd is a very clever person, in my judgment, and she had
detailed knowledge of the Lottery TCS/Mr Abdulla situation. She
sought«to «give. me the impression that she was being caught
unprepared, and had only come to the matter cold when being
asked questions in the witness box. This was wholly misleading.
425 In a witness statement by her of 145 paragraphs, 44 of those are
devoted to the Post Office as a business. None at all deal with the
very great number of detailed points put to her by Mr Green,
based on internal Post Office documents over the years, which
demonstrate an internal view of unsatisfactory performance at
odds with the Post Office position in the case. This therefore
must mean that Mrs Van Den Bogerd is an extremely poor judge
of relevance. Her judgment also seems to have been uniquely
exercised to paint the Post Office in the most favourable light
possible, regardless of the facts.
441 Mrs Van Den Bogerd would, on some occasions, give clear and
cogent evidence, and one important example is in respect of the
way the Post Office treated sums that had been settled centrally.
However, for the most part, she was extraordinarily conscious of
the need to protect the Post Office’s position in the case
generally, which given her very close involvement in the Horizon
problems with SPMs over the years, effectively meant protecting
her own position too, which led to a disregard for factual
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accuracy. I find that it is necessary to scrutinise everything she
said as a witness, both in her witness statement and in cross-
examination, and treat it with the very greatest of caution in all
respects.
451 Overall, I found Mr Dance’s approach to giving his evidence
unhelpful. His written evidence glossed over important points as I
have explained above, and orally Ms Donnelly would often have
to pursue a particular point in order to obtain a straight answer.
I consider his evidence suffered from an overarching reluctance
to provide accurate evidence, if that may assist the Claimants.
458 Mrs Dickinson is a fraud specialist and it is simply, inconceivable
that she was not familiar with the Enron case, at least in outline
terms. I reject her evidence that she did not know about Enron,
which I find incapable of belief. The only, reason to claim
ignorance, as she did, was simply to be unhelpful, which is what
I find she was being.
480 Mrs Ridge seemed to me to have ay greater awareness of the
need to be fully accurate and’ helpfuleto the court than some of
the other Post Office witnesses.
488 He struck me as a careful,and:diligent person..... This was not
remotely an answer to the question, and is exactly the sort of
argumentative and*combative answer that is wholly unhelpful
502 This sort of evidence is, purely and simply, an attempt to put
matters as favourably for the Post Office regardless of the
accuracy ofthe evidence
520-525
534 Mr Trotter was accused of being evasive in some of his answers.
T do not accept that he was being evasive, but he certainly
seemed extremely nervous about giving evidence before me that
he thought might be unhelpful to the Post Office
544 I have no reason to think that any of the Post Office witnesses
were doing anything other than stating their genuine belief as at
2018 (when the trial occurred) based on their recollection, with
two exceptions. The first is some of Mr Beal’s more extreme
claims that the drafting of the NTC was designed to replicate a
SPM’s responsibility for losses under the SPMC, and that it was
also intended by the Post Office that the contract with the NFSP
would be made public.
I find that [Angela] was simply trying to mislead me. She also
explained a wholesale absence in her witness statement of highly
relevant matters as being due to a restriction on length of that
document, or if not a restriction, a desire to keep her witness
statement short. That answer was simply disingenuous.
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The non-inclusion of that evidence within her statement is
explained, in my judgment, by the Post Office’s approach to the
litigation. The Post Office has appeared determined to make this
litigation, and therefore resolution of this intractable dispute, as
difficult and expensive as it can.
545 545The problem with the Post Office witnesses generally is they
have become so entrenched over the years, that they appear
absolutely convinced that there is simply nothing wrong with the
Horizon system at all, and the explanation for all of the many
problems experienced by the different Claimants is either the
dishonesty or wholesale incompetence of the SPMs. This
entrenchment is particularly telling in the Post Office witnesses
who occupy the more senior posts.
very considerable doubts arise about the approach ‘adopted at
the Post Office to its overall control of information
546 Mrs Van den Bogerd is, in my judgment, ‘a-particularly stark
example of how a witness had to force their evidence of fact to fit
with a pre-ordained thesis
547 But [the PO witnesses] remain steadfastly committed, in their
collective psyche, to the Post Office party view
They give me the impression that they simply cannot allow
themselves to consider the possibility that the Post Office may be
wrong, as the consequences of doing so are too significant to
contemplate
548 Unless J state to the contrary, I would only accept the evidence
of Mrs. Van den Bogerd and Mr Beal in controversial areas of fact
in issu@,in®this Common Issue trial if these are clearly and
uncontrovertibly corroborated by contemporaneous documents.
561 These»are examples, in my judgment, of a culture of excessive
secrecy at the Post Office about the whole subject matter of this
litigation. They are directly contrary to how the Post Office should
be conducting itself. I do not consider that they can be a sensible
or rational explanation for any of them.
577 I find that this shows that the NFSP put its own members’
interests well below its own, and I also find that the NFSP is not
fully independent
589 I gave the Post Office multiple opportunities to produce a
document from 2015 demonstrating this, and they either could
not or would not do so. Also, the NFSP’s own website was
amended during the trial. At some point between this matter
being raised in cross-examination with Mr Beal, and the question
of documents evidencing dates being re-visited at the end of the
evidence, someone at the NFSP had specifically altered the NFSP
website. I deal with this at [594] below. What they did not know,
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when whoever it was did this, was that counsel for the Lead
Claimants had printed the NFSP website page as at the beginning
of the trial. It was therefore clear that the change had been
made, and also clear that it was done during the trial. I was
given no evidence by anyone from the Post Office about why this
was done, and done in terms that suited the Post Office’s case on
this point. I find this behaviour highly suspicious. It also
undermines, yet further, the claim by the Post Office that the
NFSP is independent.
594 This was also stated on the same page to be the "November
2018 Edition". That second sentence must have been added to
try and bolster the Post Office’s position (adopted during these
proceedings) regarding transparency
595 but either way, adding a sentence to the website of the NFSP to
bolster the Post Office’s position before mé simply adds to my
view (which I reached on the basis of Mr Beal’s cross-
examination and the documents) thatethe NFSP is not
independent at all.
598 Finally, transparency is not something that seems to mean a
great deal, if anything, to the Post Office, so far as its dealings
with the NFSP is concerned
724 There is no doubt;that the Post Office is in an extraordinarily
powerful position.compared to each and every one of its SPMs. It
appears to wield that power with a degree of impunity.
1059 It would, be, perhaps, too cynical for even the most hardened
Post Office. watcher to suggest that the problems with Horizon led
to changes to, and extension of, the contractual liability of SPMs
for losses that were adopted in the NTC. However, that option
cannot be entirely discounted